Nauer v Batterham - [2020] NSWSC 240

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Marcel Andre Nauer v Peter James Batterham [2020] NSWSC 240
Hearing dates: 5 March 2020
Decision date: 19 March 2020
Jurisdiction: Equity - Commercial List
Before: Hammerschlag J
Decision:
Order under s 8(7) of the Vexatious Proceedings Act 2008 (NSW) that Peter James Batterham be prohibited from instituting proceedings in New South Wales against Marcel Andre Nauer

Catchwords:
VEXATIOUS PROCEEDINGS – Vexatious Proceedings Act 2008 (NSW) s 8(7) – where defendant and his corporate alter egos have repeatedly, frequently, and unsuccessfully brought final and interlocutory proceedings against the plaintiff without reasonable cause in connection with the same underlying grievance – where substantial costs orders have been made against the defendant and his companies in favour of the plaintiff which have not been met and which have no prospect of being met – where the defendant has expressly stated that he will do all he can to destroy the plaintiff’s solicitor, that he has nothing to lose in causing the plaintiff as much pain as he can, and that he is not going away – HELD – appropriate to make an order that the defendant be prohibited from instituting proceedings in NSW against the plaintiff.

Legislation Cited:
Vexatious Proceedings Act 2008 (NSW)

Cases Cited:
Finsec as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [No 2] [2020] NSWSC 238
Finsec Pty Limited as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [2019] NSWSC 1831
Maylord Equity Management Pty Limited as trustee of the Batterham Retirement Fund v Nauer [2017] NSWSC 634
Maylord Equity Management Pty Limited as trustee of the Batterham Retirement Fund v Nauer (No 2) [2017] NSWSC 1467
Maylord Equity Management Pty Limited as trustee of the Batterham Retirement Fund v Nauer [2018] NSWCA 76
Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 485
Teoh v Hunter’s Hill Council (No 8) [2014] NSWCA 125

Category: Principal judgment
Parties: Marcel Andre Nauer – Plaintiff
Peter Batterham – Defendant
Representation:
Counsel:
J.R. Clarke SC – Plaintiff
P.J. Batterham – Defendant, Self-Represented
Solicitors:
Esplins Solicitors – Plaintiff

File Number(s): 2020/71906

Judgment

HIS HONOUR: By summons, issued on 5 March 2020, the plaintiff (Nauer) moves the Court for an order under s 8(7) of the Vexatious Proceedings Act 2008 (NSW) (the Act) that the defendant (Batterham) be prohibited from instituting proceedings in New South Wales against Nauer.
This application is closely connected to proceedings commenced by Finsec as Trustee of the Batterham Retirement Fund against Nauer: Finsec as Trustee of the Batterham Retirement Fund v Marcel Andre Nauer [No 2] [2020] NSWSC 238 (the principal proceedings). For reasons which appear in that judgment, which will be delivered immediately before this judgment, the principal proceedings now stand dismissed.
References below to sections are to the Act.
The relevant sections are ss 4, 6, 8, and 13(1). They provide:

4 Meaning of “proceedings”
In this Act, proceedings includes:
(a)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nauer v Batterham

Details

AGLC: Marcel Andre Nauer v Peter James Batterham [2020] NSWSC 240
Case: [2020] NSWSC 240
Decision Date: 19 March 2020

CaseChat Overview and Summary

Nauer v Batterham involves a vexatious litigant, Batterham, who has repeatedly brought proceedings against the plaintiff, Nauer, without reasonable cause. The dispute was heard by the Supreme Court of New South Wales, where the plaintiff sought an order prohibiting the defendant from instituting proceedings against them. The legal issues centred on whether the defendant's conduct constituted vexatious litigation under the Vexatious Proceedings Act 2008 (NSW) and whether an order prohibiting the defendant from bringing further proceedings was warranted. The court had to consider the repeated and unsuccessful litigation by the defendant and his corporate entities, the substantial costs orders that remained unpaid, and the defendant’s expressed intention to cause maximum harm to the plaintiff. The court found that the defendant's actions met the criteria for vexatious litigation, and granted the plaintiff's application. The court reasoned that the defendant's conduct was repetitive, had no reasonable cause, and had caused significant harm to the plaintiff. The court also noted that the defendant's refusal to pay costs and his threats to harm the plaintiff further justified the prohibition order. As a result, the defendant was prohibited from instituting any further proceedings against the plaintiff in New South Wales without the leave of the court.

Orders